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State v. Nance

Court of Appeals of North Carolina

July 16, 2019

STATE OF NORTH CAROLINA, ON RELATION OF CITY OF ALBEMARLE, Plaintiff,
v.
CHUCKY L. NANCE, JENNIFER R. NANCE, CHARLENE SMITH, manager, NANCY DRY, JAMES A. PHILLIPS, Trustee, FIRST BANK, Lender, and KIRSTEN FOYLES, Trustee, Defendants.

          Heard in the Court of Appeals 5 June 2019.

          Appeal by plaintiff from order entered 30 October 2017 by Judge Lori Hamilton and orders entered 11 May 2018 and 29 May 2018 by Judge Julia L. Gullett in Stanly County No. 17 CVS 609 Superior Court.

          Cranfill Sumner & Hartzog LLP, by Carl Newman and Janelle Lyons, for plaintiff-appellant.

          Bowling Law Firm, PLLC, by Kirk L. Bowling and Mark T. Lowder, for defendant-appellees Chucky L. Nance and Jennifer R. Nance.

          John W. Webster for defendant-appellee Charlene Smith.

          TYSON, JUDGE.

         The City of Albemarle (the "City") appeals from orders of the trial court, which allowed Defendants' motions to compel discovery and granted Chucky L. Nance's, Jennifer R. Nance's ("the Nances"), and Charlene Smith's ("Smith") motions to dismiss. We affirm.

         I. Background

         The Nances have owned the subject property in Albemarle since 2012. A business known as the "Heart of Albemarle Hotel" operated on the property until April 2017. From January 2014 through April 2017, three years and four months, Albemarle police officers allegedly visited the areas near the subject property seventy-nine times in response to complaints of criminal activity, including assaults, sales of narcotics, and solicitation of prostitution.

         On 24 March 2017, Albemarle's Chief of Police R.D. Bowen sent letters to the Nances, Kirsten Foyles, Nancy Dry, and James A. Phillips, Jr., giving notice to the parties, asserting the subject property was being used illegally under the nuisance statute, and demanding the nuisance be abated within 45 days. No notice letter was sent to Defendant Smith.

         The City's purported outside counsel filed a complaint against the Nances, Smith, First Bank, Foyles, Dry, and Phillips on 4 August 2017, four months after the hotel had closed and all activities had ceased. The City alleged the Nances' use of real property constitutes a public nuisance pursuant to N.C. Gen. Stat. §§ 19-1 and 19-2. The City also alleged Smith was employed as a manager of the subject hotel but "Nance has fired Charlene Smith as the manager of the Property, but has placed her at [another hotel owned by the Nances] as the acting manager, overseeing day-to-day operations."

         The Nances responded they had complied with the City's notice letter, fired Smith, evicted all patrons and tenants of the subject property, closed the hotel by 21 April 2017 and filed their answer. The Nances alleged they had notified City Manager Michael Ferris that all patrons and tenants had been evicted in April 2017 and the property was and has remained closed since that time.

         Smith filed her answer and alleged she had "vacated the subject property on or about April 20, 2017 at the request of Defendant Chucky Nance when the business thereon ceased operation."

         Foyles and First Bank filed a motion to dismiss, which was granted by the trial court in an order filed 13 November 2017. The City voluntarily dismissed the claims against Dry and Phillips, with prejudice, on 26 October 2017. None of those orders, actions, or dismissed parties are before us on appeal and judgments thereon are final.

         Smith moved to dismiss the City's claims against her pursuant to N.C. R. Civ. P. 12(b)(6) as part of her answer. Smith argued, in part, that the City's complaint was insufficient, where it alleged she had been employed by the Nances and no allegation of her ownership existed to make her a real party in interest. The trial court heard and granted Smith's motion to dismiss with prejudice.

         The Nances also filed a motion to dismiss the City's claims for lack of subject matter jurisdiction. The trial court heard the Nances' motion to dismiss, wherein they argued N.C. Gen. Stat. § 160A-12 required the city council to have passed a resolution authorizing the filing of the complaint. See N.C. Gen. Stat. § 160A-12 (2017). The City conceded, and the trial court found as fact, that no such resolution had been presented to, heard, or adopted by the council.

         The trial court entered an order granting the Nances' motion to dismiss, which states, in relevant part:

1. N.C. General Statutes 19-2.1 grants authority to "the Attorney General, district attorney, county, municipality, or any private citizen of the county" to bring a civil action in the name of the State of North Carolina to abate a nuisance. This section specifies how a case must proceed.
2. N.C. General Statutes 160A-11 sets out and describes the corporate powers of cities and towns as follows:
The inhabitants of each city heretofore or hereafter incorporated by act of the General Assembly or by the Municipal Board of Control shall be and remain a municipal corporation by the name specified in the city charter. Under that name they shall be vested with all of the property and rights in property belonging to the corporation; shall have perpetual succession; may sue and be sued; may contract and be contracted with; may acquire and hold any property, real and personal, devised, sold, or in any manner conveyed, dedicated to, or otherwise acquired by them, and from time to time may hold, invest, sell, or dispose of the same; may have a common seal and alter and renew the same at will; and shall have and may exercise ...

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